Katie Bond is a partner, and Samuel Butler is an associate, and Kristina L. Everett is a Law Graduate, in the Washington, DC office of Keller and Heckman LLP.
As Camus put it, the world is “an immense irrational.” All the same, the “reasonable consumer” standard still prevails in advertising law, where a recent decision out of the Southern District of New York held that plaintiffs had failed to establish what “natural” might mean to a reasonable consumer. de Lacour v. Colgate-Palmolive Co., 2024 WL 36820 (S.D.N.Y. Jan. 3, 2024). As a result, the court granted summary judgment to defendants.
The case was filed in 2016, and three classes were certified in 2021. The plaintiffs alleged that Tom’s of Maine, which is owned by Colgate, falsely advertised its products as “natural” when they contained “synthetic [and/or] highly chemically processed ingredients,” including aluminum chloralhydrate, glycerin, propylene glycol, sodium lauryl sulphate, sorbitol, and xylitol.
The court rejected the plaintiffs’ contention that Colgate’s use of the word “natural,” standing alone, misleads a reasonable consumer to believe that the products contain none of these ingredients. It discounted a consumer survey that asked whether a consumer would expect a product labelled as “natural” to contain only “natural ingredients,” without asking what the respondents understood “natural” to mean. The court also declined to rely on a USDA standard describing as “natural” ingredients that are “not more than minimally processed” or an FDA standard describing as “natural” a product containing nothing “that would not normally be expected to be there,” reasoning that the two standards were inconsistent with one another, and neither was intended to apply to personal care products. The court also refused to credit the testimony of the named plaintiffs, finding it to represent nothing more than “their own subjective beliefs.”
Returning to Camus, “what I do not understand has no reason. The world is populated with these irrationals.” Because the plaintiffs in a suit such as this bear the burden of showing that (1) “natural” has a consistent meaning and (2) the products fail to meet it, the suit fails unless the plaintiffs can show “that a ‘reasonable consumer’ would have been misled by Tom’s use of ‘natural’.”
To be sure, Colgate’s victory does little to clarify the uncertainty surrounding the meaning of the term “natural” and provides little shelter for a company seeking to market its products as “natural.” This is not the first case where plaintiffs have tried unsuccessfully to make a definition stick—last October, our WLF Legal Pulse post examined two earlier cases where plaintiffs struggled to find a basis for their preferred definitions of “natural.” Plaintiffs in those cases used tools like consumer surveys, a report from an organic chemist who had developed a taxonomy of “elements of naturalness,” dictionary definitions, and of course the linguistic intuitions of the plaintiffs.
Those cases were particularly noteworthy for inspiring judicial meditations on “Ravioli trees and Tortellini bushes,” in addition to granola bars “pulled out of the earth” yet simultaneously “untouched” by human hands. While we’re still waiting on “tangerine trees and marmalade skies” to make an appearance in a judicial decision, we know for sure that companies will continue to use the term “natural” so long as it carries broad appeal to consumers, and plaintiffs will continue to attack it so long as companies continue to use it.
Companies can provide themselves with some protection and an awareness of the risks they are incurring with their “natural” marketing by staying abreast of the numerous class action filings in this area. Once an ingredient or a class of ingredients comes in for a challenge to one product, the filings tend to spread across the industry to ensnare all manner of other products containing those ingredients. The world is, after all, an immense irrational, and it’s only natural for plaintiffs to continually bring these sorts of challenges.